Applications for British Citizenship and EU Permanent Residence cards are soaring and is it any wonder? Thousands of people from across the Continent have chosen to make our drizzly, grey, somewhat sombre island their home. They absolutely love it!

But do we?

Figures released by the Office of National Statistics last week showed that net migration rose to 333,000 in 2015, the second highest increase on record. One of the biggest arguments for leaving the EU is that unless we do so, we won’t be able to control our own borders. ‘Leave’ campaigners such as former London Mayor Boris Johnson and Conservative MP Michael Gove have sought to make this argument.

Perhaps it is right that we cannot control immigration effectively whilst inside the EU. But will we be any more successful in doing so if we left the EU? Would it make that much of a difference if we left?

This is a question that is proving difficult to answer. In the meantime, we have tens of thousands of people who have been living in the UK for years, are valued members of society, pay their taxes and respect the rule of law. For these people, the upcoming referendum of 23 June 2016 is casting a growing shadow over their lives and sense of security:

If we ‘Brexit’ Europe, will these people in turn ‘Brexit’ the UK and will we finally have control of our own borders?

A brief history of EU free movement

Interestingly, prior to World War I there were virtually no border controls or restrictions to labour mobility across the continent. Passports and visas were only introduced following the Great War as a result of security concerns. In 1957, the Treaty of Rome provided for free movement of workers but this ‘open-door’ policy was closed in the 1970s. By then, it was clear that many of those that had moved here for work had no intention of going back to their home country, having married, had children and brought property in their adopted state.

The EU website now states:

“Free movement of workers is a fundamental principle of the Treaty enshrined in Article 45… EU citizens are entitled to:

look for a job in another EU country

work there without needing a work permit

reside there for that purpose

stay there even after employment has finished

enjoy equal treatment with nationals in access to employment, working conditions and all other social and tax advantages”

Are we in control of our borders?

A hotly contested issue, it is always worth noting that we have never really given up full control of our borders. For example, we did not sign the Schengen Agreement which removed border controls between 22 EU states. Therefore (and contrary to popular opinion) when asylum seekers or economic migrants enter the EU, they cannot simply jump onto a bus or a train and come to the UK. They will need a visa to do so and without one, they will be stopped at our border and denied entry, unless they qualify for asylum.

As a result, our degree of control over our borders is greater than a country such as, for example Germany which, along with other member states is trying to re-impose border controls in an attempt to stop the tide of refugees and economic migrants entering their countries.

As EU members, we also enjoy the benefit of the Dublin Regulations. These regulations specify that asylum seeker’s applications must be processed within the country that the asylum seekers first arrived. If it finds them eligible for asylum, it is responsible for granting them refugee status and for looking after them. As we are an island state located almost at the most westerly point of the EU, migrants have to cross through mainland Europe to reach us and are subject to these regulations before they arrive at our border.

Also, Mr Cameron has already negotiated an ‘opt out’ on certain policies that means that we cannot be forced to take more refugees by other states within the EU.

In order to Brexit, the UK would have to renegotiate its trade position with the rest of the EU and the world. We know that part of those negotiations would inevitably involve us allowing free movement of EU workers in the UK. So we would still have open EU migration to the UK in much the same way we do at present. In fact, it is arguable that if we left the EU and were no longer subject to the Dublin Regulations, we might find it harder to manage the flow of migrants and asylum seekers to the UK than we do now.

Free movement is non-negotiable

In 2014, German Chancellor Angela Merkel, made it crystal clear that the freedom of movement for EU citizens was a core principle of the EU itself and was non-negotiable.

It is worth noting that BOTH Norway and Switzerland (both cited as examples of European countries that sit outside of the EU) also allow free movement of people in exchange for an open trading relationship with the EU and there appears to be little reason to suppose that the situation will be any different for the UK. Why would it be any different for the UK? It is clear that this issue of allowing EU citizens to move freely throughout the EU is fundamental to the future of the union and this writer cannot think of a reason why the EU would backtrack so spectacularly on this. If they made an exception for us, then it is foreseeable that other members would demand similar concessions and that, for Brussels would be a slippery slope.

Britain is not the only country trying to limit free movement and gain back some control of our borders. In a referendum in February 2014, the Swiss voted to introduce quotas on EU migrants from 2017 onwards. But this has caused an issue between Bern and Brussels. Brussels appears extremely reluctant to negotiate on allowing countries to restrict EU migration, and it is doubtful that it will prepared to do Britain any favours if we choose to leave the EU.

Will there be a mass exodus of EU migrants from Britain if the country leaves the EU?

I think we can confidently say no in answer to this question. EU citizens who are already exercising their Treaty rights in the UK are likely to be permitted to remain while they continue to exercise those rights, with the prospect of obtaining permanent residence or indefinite leave in due course.

Any attempt to deport thousands of EU citizens who have lived and worked in Britain for years would generate enough challenges to keep the legal fraternity busy for decades. Also, the Government is unlikely to risk the livelihood of UK exporters by booting out citizens of Britain’s biggest trading partner, the EU.

However, the situation is less certain for EU members who are not exercising Treaty rights, for example, the unemployed. This is because they would no longer have enhanced rights under Directive 2004/38.

What about EU citizens who want to come to the UK following a Brexit

If the British Government was able to negotiate its way out of the free movement principle (and that is a giant IF!), EU migrants could be faced with the full force of Britain’s immigration policies. The Home Office would be free to insist on similar restrictions and requirements that apply to non-EU nationals when granting visas and work permits, including:

making applicants pass an English language test

income thresholds for UK residents who wish to bring their EU spouse and/or children over to live with them

limiting their access to housing and public funds

The answer to the initial question

Would leaving the EU result in the UK having greater control over its borders?

For economic migrants, it depends on a number of factors such as: Will the UK be able to negotiate favourable terms on Brexit? Will these terms force us to allow free movement of workers in the UK? This is doubtful to be honest.

For refugees, the situation is also uncertain. Britain is a signatory to the UN Refugee Convention and this cannot be refuted or redressed by us simply leaving the EU. The UK would still be obliged to take in refugees as a result of its global status and commitments. We would also be obliged to do so on the same principles that we currently adhere to.

So it seems that a Brexit may not have the effect that we hoped for when it comes to controlling our borders. What is clear though, is that what is good for the goose is likely to be good for the gander:

If Britain wants to restrict EU migration, it has to accept that the EU will apply the same principles to British people wanting to travel, work and retire on the Continent. So no more summer jobs for UK students on the beach resorts on the Mediterranean and no more freedom of choice for those of us seeking to work, settle and live in sunny Tuscany, Alsace or Marbella.

Finally, without a seat at the EU table, the UK, the world’s fifth-largest economy will have little or no say or influence on its closest neighbours and largest trading partners, all of whom collectively will have a larger say on the world forum than we will.

From our position as the “greatest” nation on earth barely 50 years ago, I wonder if we are ready to surrender our acclaimed status as a world leader in a bid to secure our own borders?

Related Posts

We have been waiting for something like this ever since we took the momentous decision to leave the EU earlier this summer. The first legal challenge to decide what Brexit actually means in real terms took place today and this […]

Swiss author Max Frisch: “We asked for workers, but human beings came.” Applications for British Citizenship and EU Permanent Residence cards are soaring and is it any wonder? Thousands of people from across the Continent have chosen to make our […]

Everything You Need To Know About EEA Permanent Residence Card Applications EEA permanent residence card. On 29 March 2017, British Prime Minister, Theresa May triggered Article 50, officially notifying the European Council of the UK’s intent to leave the European Union. […]

Saracens Solicitors Ltd is registered at Companies House (company no. 6532280) and their registered offices are situated at 1 Great Cumberland Place, Marble Arch, London W1H 7AL. Saracens Solicitors Limited is authorised and regulated by the Solicitors Regulation Authority (SRA number. 486657). We use the word 'partner' to refer to a shareholder or director of the company. Saracens Solicitors are also regulated by the Financial Conduct Authority and are members of The Law Society, APIL as well as Resolution.

Saracens Solicitors are international solicitors in London. Servicing clients worldwide, building trust through understanding.